Duty, breach and causation
5The relevant facts are not complex. The essential facts that were not controversial on appeal were as follows. Mr Sijuk was 54 years old at the date of the accident on Saturday, 3 April 2004. He had worked as a brick cleaner since 1997, and since 2003 had been employed by his wife. Mr Sijuk had undertaken a lot of brick cleaning jobs for Craftsman before April 2004. On the Wednesday or Thursday before the accident, Mr Storrier, a supervisor employed by Craftsman, called Mrs Sijuk and told her that the job would be ready for Sijuk to do the brick cleaning work on Saturday. After the accident Mr Kalanj, a cousin of Mrs Sijuk who was called after the accident, attended the site and saw a square piece of scaffolding missing. Mr Cowling, the expert called in the case for the plaintiff, said that Mr Sijuk should have inspected the scaffolding before starting work. Mr Sijuk was found underneath the scaffolding by a neighbour, Mr Thompson. The scaffolding was erected by Uni-Roof (Hire) Pty Limited. It had a sign on it that said it was safe, which Mr Sijuk saw before climbing on to the scaffolding and which gave him a level of comfort as to its safety. When Mr Storrier inspected the scaffolding on Wednesday it was in a satisfactory condition. The primary judge described this evidence of Mr Storrier as unreliable. When Mr Storrier attended the site on the Monday after the accident he found a 600 mm x 600 mm piece of scaffolding had been taken out and was sitting on the lower level of the scaffold. The carpenters, Mr Reid and Mr Henderson, had worked on the site on Wednesday, 31 March. They did not see any pieces of scaffolding missing when they were on site. Their evidence did not, however, support a conclusion of a detailed inspection by them. His Honour found (in respect of which finding there was no challenge) that between Wednesday afternoon and Saturday morning an unknown person moved a 600 mm x 600 mm piece of scaffolding from its position thereby leaving a gap or hole in the scaffold. The site of the scaffolding was not secure from public access. No person worked on the site between Wednesday afternoon and Saturday morning.
6Central to the arguments put on appeal about Ilvariy's responsibility or not was whether it, through Mr Storrier or another suitable person, was obliged to exercise reasonable care to make the site safe for workmen who were invited on to do work. It was submitted on appeal (and this was the essence of the primary judge's conclusion) that this duty was breached by Ilvariy failing to inspect the scaffolding on the morning of Mr Sijuk's work and before he commenced. Another way that the matter was put on appeal by the respondent was that Ilvariy had a duty of co-ordination of the tradesmen working on the site in connection with the site itself to exercise reasonable care to organise and co-ordinate a safe site upon which they could work, which duty was breached by the failure to inspect the scaffolding before Mr Sijuk commenced work on Saturday.
7The primary judge's factual analysis (about which there was no complaint on appeal) is contained in [136]-[159] of his reasons. Relevantly he found as follows. The evidence of the arrangement between Mrs Sijuk and Mr Storrier was "imprecise". Ilvariy had engaged Mr and Mrs Sijuk previously. The usual practice adopted by the defendant for engaging the plaintiff and his wife's business was quite informal without much in the way of record keeping. The arrangement involved a phone call and the issue of a purchase order. The brick cleaning was to be done on a day when no-one else was required to work on site because of the need to use diluted acid solution for the purpose of cleaning the brickwork. On Mr Storrier's evidence, it would have been quite acceptable to him for the plaintiff to have done the work on the Thursday, Friday or Saturday of the week in question (there apparently being no other trade work on those days). Mrs Sijuk said that it was common practice for such work to be done on Saturdays. It is reasonable, in those circumstances, to infer that both Mrs Sijuk and Mr Storrier would have considered the Saturday as, at least, an equally likely day for the plaintiff's attendance at the site as the Thursday or Friday. As Saturday was the day brick cleaning was often done, if anything, Saturday 3 April presented as the likely day on which the plaintiff would attend the site.
8The defendant/appellant argued that Mr Storrier was not told, as he should have been, when Mr Sijuk would do the work. If Mr Storrier had been told he would (he said) have had the site (including the scaffolding) inspected before Mr Sijuk undertook his task. The latter part of that evidence was relevant to the question of duty and breach.
9The primary judge said the following at [140]-[143]:
"[140] Mr Storrier's evidence was to the effect that, in his phone call, the site was available from the Wednesday. He did not specify any particular day on which he required the work to be done. Further, he did not say in evidence that he told Mr Sijuk to notify him in advance as to the day on which her business would do the work. There was evidence to the effect that, before the job in question, the defendant had, on other occasions, expressly specified or required Rosa's Cleaning Services to advise it in advance of the day when work would be performed. There was, however, no documentary or other evidence that established that any such requirement, if there had been one, had been communicated to Rosa's Cleaning Services before the firm was engaged for the job in question. Mr Storrier's evidence was simply that he said to Mr Sijuk that the carpenters were finishing on the Wednesday and that 'the brick cleaning was right to go from the Thursday onwards' .
[141] Mr Storrier's recollection of any practice as to a requirement to notify in advance was, as earlier stated, imprecise and was unsupported by other evidence. It was contrary to Mrs Sijuk's evidence. I accept her evidence that:-
(1) The usual practice was that she would receive two to three days' notice from the defendant for a brick cleaning job. This was contrary to Mr Storrier's evidence that he usually tried to give one week's notice. (2) The plaintiff had previously done work for the defendant on Saturdays. Mr Storrier agreed that Saturdays were days upon which brick cleaning work was carried out. (3) There was no requirement in place as at the time of the job in question for safe work statements to be supplied by her to the defendant. There was no credible evidence to the contrary. (4) She had previously advised the defendant when her husband would attend the site but that would usually occur at the time when she had received notification of a job.
[142] Whilst it was common practice for brick cleaning to be carried out on Saturdays, Mr Storrier's evidence was he himself did not work on Saturdays. He said that it was generally his role to inspect scaffolding before a particular contractor started a job. On Saturday 3 April 2004, as he was travelling to the country, even if Mr Storrier knew in advance that the cleaning work was to be done on the Saturday, he would not, on his evidence, have been in attendance on that day to have inspected before the plaintiff commenced work. There was no evidence of any one else having responsibility for doing so in his absence.
[143] Finally, when Mr Storrier spoke to Mrs Sijuk on the phone after the accident, there was no suggestion in the evidence that he expressed any surprise to her that the plaintiff had been cleaning the brick work at the site (even though, in evidence, said he had not expected the plaintiff to have been there). The fact that he did not express any surprise is, at least, consistent with Mrs Sijuk's evidence and his own, that it was common for brick cleaning to be Saturday work."
10The above findings are to be understood in the light of the evidence of Mrs Sijuk (which was generally accepted by the primary judge) as to the timing of the work (T p75; Combined Book p 69):
"Q. And he, if he told you that the site was to going to be clear of other people after Wednesday and that he can do it on Thursday or Friday, for example, then you would tell him what day Milan would come?
A. Yes.
Q. On this particular occasion, I suggest to you that at no point after you were first notified of the job did you let Mr Storier [sic: Storrier], that is Nick, know what day Milan could attend to do that job?
A. He call and he said it will be ready for Saturday.
Q. I suggest to you that you are mistaken about that. See you don't even remember who it was that took this call, do you?
A. Because he told me he go on Saturday because he must go on a Monday on Winmallee job."
(emphasis added)
11At [157] of his reasons, the primary judge said:
"The arrangements made by the defendant with Mrs Sijuk for the plaintiff to attend the site were informal and imprecise. Those arrangements left open the prospect that the plaintiff would perform the work on the Saturday when Mr Storrier would not be available to inspect the scaffolding on the Saturday before he started his work as Mr Storrier was travelling to the country that day. On the evidence, there was no one else other than Mr Storrier who was assigned the tasks of liaising with Mr Sijuk and inspecting the site on behalf of the defendant."
12Thus, although his Honour did not find that Saturday was the agreed and arranged day for the work to be performed, nevertheless, Mr Storrier knew that it was distinctly possible that the work would be performed on Saturday.
13As to duty, the primary judge said the following at [151]-[153]:
"[151] The defendant, as the on-site builder and organiser of sub-contractors, had the principal responsibility to take reasonable care to make the site safe for the performance of work by such sub-contractors including Rosa's Cleaning Services and the plaintiff.
[152] The duty of care in that respect extended to the provision of safe means of access for sub-contractors, including the scaffolding on site.
[153] The defendant's duty of care extended to those who might reasonably be expected to perform work on Saturdays."
14As to breach, the primary judge said the following at [158]-[159]:
"[158] Accordingly, the factual matters included, firstly, the absence of any clear arrangement for the performance of work including the failure by the defendant to co-ordinate the plaintiff's work for a particular day, secondly, a failure to carry out an inspection of the site and, thirdly, the existence of a gap or hole in the scaffold.
[159] The evidence, in my opinion, clearly establishes a breach by the defendant of its duty of care to provide a safe place of work and a safe means of access to the work to be performed by the plaintiff. That breach of duty was causative of the plaintiff's accident."
15The cause of the creation of the danger was dealt with by the primary judge at [154] as follows:
"The site was not secured or fenced off so as to prevent third parties or strangers from entering the construction site. Whether a person who had lawfully been on site or some other person who entered the site removed or dislodged the 600 mm by 600 mm piece of scaffolding is unknown. That piece was probably removed at some point in time between the Wednesday preceding the accident and the time of the plaintiff's accident. There is no suggestion that the plaintiff removed it."
16The fall and its circumstances were described by the primary judge at [145]-[147] as follows:
"[145] After setting up for work on the scaffold, the plaintiff commenced to carry out cleaning duties over a period of about half an hour moving progressively along as he did so. The effect of his evidence was that he did not notice or detect any defect in the scaffold, including, in particular, on the first level from which he worked. In particular, he said he did not notice any gap or hole in the scaffold in the relevant area. He said that he simply fell three and a half to four metres.
[146] In analysing the evidence to determine the cause of the accident, I note:
- It is clear that the plaintiff, by some means, fell from the scaffold whilst working on it and he came to rest directly underneath the scaffold.
- There is no apparent explanation for the fall other than that the structural integrity of the scaffold was in some way impaired.
- On the Monday morning, Mr Storrier found a piece of scaffold 600 mm by 600 mm out of place. That is consistent with the evidence of Mrs Sijuk and Mr Kalanj who said that they noticed a hole or gap in the scaffold in the area in which the plaintiff had evidently been working.
(3) Findings on liability in negligence
[147] The evidence of Mrs Sijuk, Mr Kalang and Mr Storrier establishes on the probabilities that between Wednesday afternoon and Saturday morning, a person or persons unknown moved a piece of scaffolding measuring 600 mm by 600 mm from its position thereby leaving a gap or hole in the lower level of the scaffolding. The plaintiff's accident occurred after he had performed work for about 30 minutes when he fell through a gap/hole in the scaffold. At that time, it is likely that his vision would have been impaired by an accumulation of material on his work goggles. It is unclear as to whether the gap or hole was clearly visible before the plaintiff's fall."
17The first criticism on appeal was that the primary judge misdirected himself as to duty in [159] by positing a duty in terms of that owed by the employer. This was said to be contrary to established principle in Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16; Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1; Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; 217 CLR 424; Papatonakis v Australian Telecommunications Commission [1985] HCA 3; 156 CLR 7; Mambare Pty Ltd trading as Valley Homes v Bell [2006] NSWCA 332; Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406; and Unilever Australia Ltd v Pahi [2010] NSWCA 149.
18It was submitted that the only duty owed by the appellant was to co-ordinate trades and that since the question of trade co-ordination had nothing to do with the accident there was no duty, breach, or possible causal link.
19I reject these submissions. The appellant was the builder in occupation of the building site, including the scaffolding. I agree that co-ordination of trades had nothing to do with the accident. The accident was caused by the dangerous state of the scaffolding which bore a reassuring sign that it was safe. The question is whether the appellant, as the builder having possession of the site, owed any duty to tradesmen such as Mr Sijuk to exercise reasonable care to make the site safe for them to work upon. Putting Papatonakis to one side for the moment, none of the cases relied on by the appellant concerned the duty of a builder as occupier of the site to exercise reasonable care in respect of the safety of the site upon which men and women would be invited to work. A building site and scaffolding on a building site can be dangerous places. People work at heights, machines are in use and other dangers exist. As the occupier with possession of the site for the undertaking of its contractual obligations for its own commercial benefit, a builder owes a duty to exercise reasonable care to avoid the exposure of persons coming on to the site to risk of injury from the dangerous condition of the site. In seeking to gainsay the existence of the duty of an occupier, the appellant referred to what Brennan and Dawson JJ said in Papatonakis at 30:
"... where an independent contractor carrying on a particular trade is engaged by an occupier to work on his premises, the occupier is not under a duty to give warning of a defect in the premises if tradesmen of that class are accustomed to meeting and safeguarding themselves against defects of that kind."
20The logical syllogism that the appellant sought to engage from this statement was that since Mr Sijuk should, in the exercise of due care for his own safety, have examined the scaffolding before he began work, any defect that he would have found was a defect in the premises that tradesmen such as Mr Sijuk were accustomed to meeting and safeguarding themselves against.
21I reject this submission. This way of putting the matter transforms contributory negligence into a complete defence to the claim. It is not a fair application of what Brennan and Dawson JJ were saying. Tradesmen of Mr Sijuk's class are not accustomed to dealing with dangerous scaffolding, especially scaffolding that was said by a sign to be safe. Undoubtedly an occupier, especially a non-technical occupier, is entitled to expect that a tradesman will deal with dangers or defects which his trade skills allow him in the ordinary way to perceive and deal with. That does not mean that a builder is free not to exercise any reasonable care about the safety of the building site of which it has possession. The cases to which Brennan and Dawson JJ referred were: Christmas v General Cleaning Contractors Ltd [1952] 1 KB 141 - window cleaners on the building of a club where the defect in the lower sash was a common recognisable danger of everyday experience to window cleaners against which the window cleaning company should guard; Bates v Parker [1953] 2 QB 231 - window cleaners on a building where it was left to the contractor how to perform the work in circumstances where the occupier was not aware of the particular risk involved in the cleaners' method; Archer v Hall [1967] 1 NSWR 107 - a welder working on defendant's premises threw a metal pole from where he worked fouling power lines below; Wright (WH) Pty Ltd v Cth [1958] VR 318 - a crane driver on occupier's land; Pinborough v Minister of Agriculture (1974) 7 SASR 493 - pest controllers at a cold store falling through the weaker part of a roof, being a hazard commonly encountered by pest controllers in their work.
22These cases involved a relevant category of entrant and are affected by the special duties there relevant - especially to an invitee and "unusual danger". Care, of course, must be exercised in their utilisation. The relevant question here is a factual one that feeds into a legal one: whether or not a duty of care exists. The scaffolding was dangerous; someone had made it so. The state of the scaffolding was within the control of the builder (though, of course, it could be checked by tradesmen working on the site).
23No doubt, in some respects, a person who retains an independent contractor can expect the latter to decide how to do the task and what safeguards to put in place. This does not include leaving it to the contractor to find the danger in scaffolding at a building site that reasonable care by the builder/occupier would have found and eliminated.
24Though not conclusive, the practice of Mr Storrier reinforces my conclusion. His practice was to inspect scaffolding before any tradesmen began to use it. This accorded with Mr Cowling's view of good practice. In my view it accorded with reasonable common sense and the exercise of reasonable care to reduce the risk of injury on a building site by the condition of the site.
25It was said that Mr Sijuk and his wife did not tell Mr Storrier when Mr Sijuk would be working. Mr Storrier, however, knew that it was a distinct possibility that it would be Saturday. He had no mechanism or system in place to identify the day and to inspect on the relevant day. Had he done so, the accident would not have happened.
26The primary judge used language to describe the duty and breach that was redolent of the duty of an employer. Nevertheless, the appellant owed a duty of care as occupier and breached that duty.